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Himachal Pradesh High Court · body

2001 DIGILAW 312 (HP)

BELI RAM v. STATE OF HP

2001-11-02

NARINDER SINGH THAKUR

body2001
JUDGMENT Narinder Thakur, Honble Member (Judl.):The present original application has been filed by the applicant against the impugned order dated 2.2.2000 (Annexure-A/viii) whereby the daily rated services of the applicant have been terminated. The applicant has also challenged the impugned order dated 2.2.2000 Annexure-A/ix) whereby respondent No.3 has asked the applicant to deposit a sum of Rs.5200/- and the stepny of the vehicle. 2. The relevant facts are that the applicant was initially engaged as a daily wager driver w.e.f. 13.4.1994, but later on the name of the applicant was duly sponsored through the Employment Exchange (Annexure-A/xii). The applicant was deployed to driver the vehicle of the respondent No.3 The applicant discharged his duties faithfully and deligently and experience certificates issued to him by various officers are placed on record as Annexure-A/1 to A-v. It is alleged that on 5.1.2000 (Annexure-A/vi),the present officer Shri Sandeep Kumar B.D.O., Development Block Jubbal-Kotkhai issued a show cause notice to the applicant on the basis of the personnel whims and fancies. The reply to the show cause has also issued impugned order on 2.2.2000 (Annexure -A/IX), whereby he directed the applicant to deposit an amount of Rs. 5,200/- alongwith the stepany of the vehicle in the office of Respodent No. 3 was submitted by the applicant on 18.1.2000 (Annexure-A/VIIl). On 2.2.2000 Annexure-A/VII), respondent no.3 terminated the services of the applicant in complete contravention to the principle of natural justice, equity and rule of law. The respondent No.3 within seven days from the date of issuance of the said order. 3. The reply has been filed by respondent and it has been contended that the impugned order has been passed in accordance with the principle of natural justice after giving due opportunity to the applicant. It is further contended that the applicant was not discharging his duties deligently (Annexure-R/I to R-IX), and to the satisfaction of respondent No. 3 which would be evident from the reply and Annexure attached with the reply that the applicant was mis-using his position since inception. It is stated that earlier also the predecessor in the interest of respondent No. 3 has issued memorandum, show cause notice to the applicant. It is alleged that the applicant is habitual of misusing the funds and dis-obeying of the orders of his superiors. It is stated that earlier also the predecessor in the interest of respondent No. 3 has issued memorandum, show cause notice to the applicant. It is alleged that the applicant is habitual of misusing the funds and dis-obeying of the orders of his superiors. It is stated that the reply of the applicant to the show cause notice was not found satisfactory and hence his services were rightly terminated. It is further stated that the applicant was given various opportunity to improve himself but the applicant did not pay any heed and ultimately respondent No. 3 has taken the harsh step in accordance with law. It is stated that because the applicant has taken the vehicle at his own towards Chirgaon and Bhatwari without any purpose and the order of respondent No. 3, therefore, the applicant is solely liable to deposit the amount and this fact was also earlier brought to the notice of the applicant vide Annexure-R/V), The applicant is also bound to hand over the stapeny in the office of respondent No. 3, since, it is the duty of Driver. But the applicant despite complying with the letter dated 2.2.2000 (Annexure-R/IX) has neither deposited the amount nor handed over the stapeny in the office of respondent No. 3. 4. Rejoinder has also been filed by the applicant wherein he has denied the contents of the reply and has stated that the impugned action of the respondent department amounts too unfair labour practice of the impugned action has been undertaken in utter dis-regards of the principle of natural justice in the conduct of domestic inquiry coupled with undue haste. Principle of natural justice have not been observed in as such as the respondent department has relied upon the un-recorded statement of the person who were animosity towards the applicant and the applicant has not afforded an opportunity to cross examine them. It is further stated by the applicant that the show cause notices use to be issued to the applicant due to mala fide reasons. The applicant has on 19.6.1997 (Annexure-A/X), and 3.11.1997 (Annexure-A/XI) asked the then BDO to hand over to him the log book, which the then BDO use to keep it himself without signing the same just to harass the applicant. The applicant instanced to get the signature on them resulted in the show cause notices being issued to him. The applicant has on 19.6.1997 (Annexure-A/X), and 3.11.1997 (Annexure-A/XI) asked the then BDO to hand over to him the log book, which the then BDO use to keep it himself without signing the same just to harass the applicant. The applicant instanced to get the signature on them resulted in the show cause notices being issued to him. It is submitted by the applicant that he has already deposited stapeny with the respondents department. However, the respondent department with a view to harass the applicant has not issued receipt for the same. It is further submitted by the applicant that the (Annexure-R/I) has not been received by the applicant as such there is no question to reply the same. 5. I have heard the learned Assistant Advocate General and the learned counsel for the applicant and has gone through the pleadings of the parties and the record produced by the respondent department carefully. 6. It has been revealed to me that no inquiry associating the applicant \ has been held before issuance of show cause notice dated 5.1.2000 (Annexure-A/VI). At the very outset of the show cause notice it has been mentioned by the respondent No. 3 that "it has been proved to the undergone" what was the modus adopted by respondent No. 3 for proving the misconduct of the applicant has neither been spelled out in the reply nor revealed from the record. 7. The respondent No. 3 has merely issued show cause notice on 5.1.2000 (Annexure-A/VI), which was replied to by the applicant denying all the allegations and explaining his reasons. The respondent No. 3 has completed merely a formality which fail short of principle of natural justice in the given fact and circumstances of the present case. It is well settled that what particular Rules of natural justice should apply to a given case depends to a great extent on the facts and circumstances of the case. The aim of the Rules of natural justice is to secure justice or to put it negatively to prevent mis-courage of justice. These Rules can operate only in area not covered by ant law validly made. 8. Since in the instant case the applicant has controverted all the allegations made against him. The aim of the Rules of natural justice is to secure justice or to put it negatively to prevent mis-courage of justice. These Rules can operate only in area not covered by ant law validly made. 8. Since in the instant case the applicant has controverted all the allegations made against him. therefore, he should have given opportunity to check the veracity of statement of the person who have complained against to respondent No. 3 which found basis of his taking the impugned decision. 9. One of the allegation in show cause notice was that the applicant was sent to Rohroo on Govt. duty vide office letter dated 7.1.1999 however, on his own he took the vehicle to Cirgaon as a result of which the vehicle collided with some other vehicle and the Govt. vehicle sustained damage. The above mentioned vehicle is repaired and the expenses of repair came out of Rs. 5200/- and the applicant was held to be responsible in reply to this allegations. The applicant has replied to that he was sent to Rohroo by the respondents not on official duty but to see off the children of the office Superintendent Shri I.D. Sharma, and on the way back due to show the vehicle skided and strucked against the other vehicle. Likewise, in reply to allegation No. 1, the applicant has stated that on 1.1.2000 on the retirement of Shri Bhagwan Dutt all the employee went to see off Shri Bhagwan Dutt and after the farewell they were to come back. The wife of the applicant was seriously ill and he was required to come back to Jubbal to look after her. All the employees were highly intoxicated and none of them were ready to come back due to the above exigency the applicant came back by informing them. 10. Looking to such a contentious reply filed by the applicant to the show cause notice issued by the respondent No. 3, it would have been prudent for him to have held proper inquiry through other inquiry officer, more so when the allegations of malafide are also against the respondent No. 3. 11. The learned counsel for the applicant has drawn my intention to the judgement of the Honble High Court of H.P. reported in 1988 (2) SLC titled as Kuldeep Singh Vs. State of H.P. In this judgement the Honble High Court has observed as under:- "5. 11. The learned counsel for the applicant has drawn my intention to the judgement of the Honble High Court of H.P. reported in 1988 (2) SLC titled as Kuldeep Singh Vs. State of H.P. In this judgement the Honble High Court has observed as under:- "5. In the present case, the court is absolved from the requirement of looking being the order in the search for its real foundation because the two affidavits- in -reply filed by the Director, Social and Womens Welfare leave no room for doubt or debate that the impugned termination is based on the alleged misconduct on the part of the petitioner arising out of what has been described as is "negligence", "carelessness", "inefficiency", "grave lapses" and "Himalayan blunder" in discharging of his duties. The impugned termination therefore, could not have been effected without complying with the minimal requirements of the natural justice. This elementary principle of administrative law, which every public servant dealing with a public servant is required to observe under circumstances aforementioned, has been brushed aside in the present case by a stroke of pen in what can not but be described as an arbitrary manner. 6. True it is that the petitioner was a daily rated employee. However, this court has repeatedly held that even a daily rated workmen cannot be rushed out of employment, on such grounds and under such circumstances, without compliance with the basic rules of the natural . justice, although no regular departmental inquiry is required to be held against him. It may be re-iterated that in the case of a daily rated employee against whom a penal action is proposed, the least i.e. required to be done is: (1) to inform him of the proposed action ;(2) to disclose to him the material and to material sought to be relied against him; (3) to afford him a reasonable opportunity to correct or to contravert such material and to place his view point and (4) to arrive at a fair and just decision supported by reason. Be it realised that the protection of Article 14 and 16 of the Constitution is available as such to an employee on daily wages as to any other employee in the public sector. He too has to be dealt with in a fair and just manner and not to arbitrarily or whimsically." 12. Be it realised that the protection of Article 14 and 16 of the Constitution is available as such to an employee on daily wages as to any other employee in the public sector. He too has to be dealt with in a fair and just manner and not to arbitrarily or whimsically." 12. The above judgement of the Honble High Court has also been relied upon by the learned Assistant Advocate General with the argument advanced by him that a show cause notice was issued to the applicant before penal action was taken against him. In my view, show cause notice was not sufficient as in the above authority, the Honble High Court while lying down the minimal terms has also laid down that the material sought to be relied upon against the applicant must also be disclosed to him. Nothing has been shown to me that the applicant has been shown any of the? complaints made against him by the person of staff and the applicant was. afforded any opportunity to explain the same. As a matter of fact, the veryi wording of the show cause notice indicates that the respondent No. 3 has pre-judged the whole issue. 13. The another authority relied upon by the learned counsel for the applicant is reported in 2000 (3) SCC 588 titled as Nar Singh Pal Versus Union of India others. In it the Honble Apex Court has quashed the termination of a casual labourer based on the preliminary inquiry and not on the basis if regular inquiry. 14. The Apex Court in DK Yadav Versus M/s JMA Industries reported in 1993 (3) SCT 537 in para 11 has held that it is well settled that right to life enshrined under article 21 of the Constitution would include right to livelihood. The order of termination of the service of an employee/workmen visits with civil consequences of jeopardising not only his/her livelihood but also career and livelihood of dependents. Therefore, before taking any action putting an end to the tenure of an employee/ workmen fair play requires that a reasonable opportunity to put forth his case is given and domestic inquiry conducting complying with the provisions of the natural justice. In DTC Vs. Therefore, before taking any action putting an end to the tenure of an employee/ workmen fair play requires that a reasonable opportunity to put forth his case is given and domestic inquiry conducting complying with the provisions of the natural justice. In DTC Vs. DTC Mazdoor Congress and others (supra) the Constitution Bench per majority, held that the termination of the service of the workmen giving one months notice or pay in lieu thereof without inquiry offended Article 14 of the Constitution. The order terminating the service of the employee was set aside. Similar observations have been made by the Honble Apex Court in MCD Vs. Parveen Kumar Jain reported in 1998 (9) SCC 468. In the light of above observations and discussions the present Original Application is allowed the impugned order Annexure-A/VIII and A/ IX are quashed. The respondents are directed to re-engage the applicant from the date of his termination with all consequential benefits. These directions will be complied with within 45 days of the receipt of this order. With these observation this Original Application is disposed of with no order as to costs.